Wisconsin’s highest court ruled Friday that doctors must obtain informed consent for unborn children before delivery, opening a new legal avenue for birth injury claims across the state.
The 4-3 decision allows 11-year-old Charlie Brekke to proceed with her lawsuit against the doctor who delivered her in 2015. Brekke suffered permanent shoulder damage during a complicated vaginal birth that her attorneys say could have been prevented with proper consent discussions.
Born Child Can Sue for Prenatal Injuries
Chief Justice Jill Karofsky, writing for the majority, emphasized the ruling protects children who are harmed before birth, not the unborn themselves. “Our holding does not introduce or expand rights afforded to an unborn child,” she wrote. “Rather, it protects the right of a born child to recover for wrongs done before she was born.”
Brekke was born to a surrogate mother who presented multiple risk factors for shoulder dystocia, a dangerous condition where the baby’s shoulders become stuck against the mother’s pubic bone during delivery. The child’s attorneys argue Dr. Craig Batley failed to discuss alternative birth methods that could have prevented the injury.
Lower Courts Had Blocked the Claim
Both the Winnebago County circuit court and Wisconsin’s appellate court had ruled in favor of Dr. Batley, finding that informed consent requirements didn’t apply to unborn patients. The Supreme Court’s reversal sends the case back for trial.
The ruling establishes that Wisconsin doctors now face legal liability if they fail to discuss delivery risks and alternatives with pregnant women when those decisions could harm the child being born. For families dealing with birth injuries, the decision removes a major legal barrier to holding physicians accountable.
The case will now proceed on both negligence and lack of informed consent grounds, potentially setting precedent for how Wisconsin courts handle medical malpractice claims involving prenatal care and delivery decisions.
Key Points
- Wisconsin’s high court ruled children can sue for birth injuries caused by lack of informed consent before delivery
- 11-year-old with permanent shoulder damage can now proceed against her delivery doctor after lower courts dismissed her claim
- Ruling doesn’t create new fetal rights but protects born children’s ability to recover for prenatal medical errors
https://www.courthousenews.com/wisconsin-supreme-court-says-unborn-patients-are-owed-informed-consent/ – July 11, 2026
